Constitutional Evolution Through Practice

Mukti Rijal

It has been three years since we have caused the promulgation of the federal constitution of Nepal. In fact, the participatory approach that was adopted in the making of the constitution was not easy as it entailed several risks and dangers to throw spanners in the process. In this approach of constitution making, it is difficult to find compromise on several issues. Several groups would like to influence the process of constitution writing to ensure that their own aspirations get incorporated in the basic law of land. It was exactly due to this reason that the constitution drafting process consumed around six years to resolve squabbling interests punctuated by the election of the Constituent Assembly twice first in 2008 and second in 2013.

New structuresAfter the promulgation of the constitution on September 20, 2015, its implementation process has not been smooth sailing rather. The past three years have been spent in building new structures for ushering in federal political milieu in the country. The laws are being legislated one after the other without sufficient deliberation to ensure that deadline set in the constitution has not been missed out. This is very much a technocratic approach to set and finalise laws without having the interests of the stakeholders taken into account. Nevertheless, we should take solace from the fact that the constitution has been a democratic and republican charter that holds out promise for social and political transformation of the country. In its preamble, the intent and purpose of this democratic republican constitution has been clearly stipulated. It states that this constitution was enacted by the Constituent Assembly to achieve the popular aspirations for inclusive polity, justice, peace, respect, dignity and prosperity of the nation. A casual scanning of the constitution clearly shows that it has both democratic and republican virtues which are very important in democracy building, institutionalisation of rule of law, constitutionalism and consolidating the sovereignty of the people. A republican state is defined as a sovereign state which is organised with a form of government in which power resides in elected individuals representing the citizens. Moreover, in a democratic republican state, the government leaders exercise power according to the rule of law with sufficient and legitimate curbs on arbitrary exercise of their power. Currently, 147 of the world’s sovereign states use republic as part of official categorisation of their political system. Not all of these are republics in the sense of having legitimately elected democratic governments with fair consent of the governed. Nor do all nations with elected governments use the word republic to characterise their political system. However, Nepal is fully qualified to be declared as a democratic republic in the real sense of the term. It has abolished hereditary monarchy to meet the well defined democratic standards of republicanism. Moreover, Nepal has established the democratic institutions and these find better articulation in this constitution. Nepal’s entry into the federal political league has been glorious enough as it did not shed much blood that was the case in many countries in the world. We do find that the republics became more common in the western world starting in the late 18th century. They had come into existence displacing the autocratic and absolutist monarchies as the most common form of government in Europe in those times. The republics that were brought into existence in Europe in those days had not been democratic enough imbued with mandate of the people in the modern sense of the term. However, in modern republics, the situation is completely different. The executive theoretically is legitimised both by the written democratic constitution and also by popular vote. Needless to say, the ideal of a democracy is universal equality while that of a republic is the supremacy of the citizen .When ideal of equality and civic supremacy is effective, the democratic republic becomes viable and functional. But experiences have shown that the strong commitment to democracy have to fully translated into practice. Only mentioning democracy and republic in the constitution expressed in letter and spirit does not make sense if democratic politics, culture and behaviour are absent.Although envisaging democracy and republic in the basic law of the land is necessary as a matter of express democratic commitment, these need to be backed up by appropriate operational environment, working reality and behaviour. In fact, it is interesting to note the fact that the democracy does not appear anywhere in the US Constitution or the Declaration of Independence; or in any provincial constitution for that matter. It is in order to note that the US has fifty one federal entities called states and they have their own separate constitutions. It is through practices and conduct that the US has become one of the most important and vibrant democratic republican countries in the world. In the democratic history of around three hundred years, the US constitution has been amended less than three dozen times and so is the case of other countries like India. India got democratic republic constitution in 1951 after the British left but the amendments to it are carried out only after the empirical experiences and practical needs dictated accordingly. However, when we take the case of our own country, demands have been raised that it be amended. It is very disconcerting to note that a constitution that has been enacted and promulgated by the CA has to get confronted with adversarial and discordant notes. It indicates how fragile and weakened has been the constitutional foundation of the democratic political system of the country. Nepal is not only the democratic republic but also has become a federal country. This is clearly stipulated in this constitution.

IdealsThe constitution provides for seven provinces and seven hundred fifty three local government units that have been elected. These have been executing their roles and mandates allocated by the constitution. It is very important to put the constitution into full-fledged implementation to churn democratic dividends in real terms. If we have to uphold and strengthen the values enshrined in the constitution we need to have the sense of patience, tolerance and accommodation to allow the constitution to evolve and mature. Otherwise, the ideals of democracy and republicanism vouchsafed for in the constitution will not be translated into reality.